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Maxill Inc. v. Loops, LLC

United States District Court, W.D. Washington, Seattle

July 10, 2019

MAXILL INC., an Ohio corporation, Plaintiff,
v.
LOOPS, LLC; and LOOPS FLEXBRUSH, LLC, Defendants. LOOPS, L.L.C.; and LOOPS FLEXBRUSH, L.L.C., Plaintiffs,
v.
MAXILL INC., a Canadian corporation; and DOES 1-10, Defendants.

          ORDER

          THOMAS S. ZILLY, UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court to construe certain claim terms in United States Patent No. 8, 448, 285 (the “'285 Patent”), pursuant to Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995), and Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005). Having reviewed the parties' respective opening and responsive briefs, as well as the materials submitted therewith, [1]the Court enters the following order.

         Background

         The '285 Patent discloses a toothbrush, which is "compact in size and may be safely used by prison or other inmates," and a method of making it. '285 Patent at Col. 1, Lines 13-17, Ex. 1 to Choi Decl. (docket no. 29-2). The '285 Patent has 20 claims, three of which are independent, namely Claims 1, 11, and 18. Each independent claim discloses a "toothbrush" 10 having "an elongated body" 12 with "a head portion" 14 and "a handle portion" 16. Id. at Col. 7, Lines 64-67; Col. 8, Lines 49-52; and Col. 10, Lines 1-3. The '285 Patent depicts an embodiment of the invention as follows:

         (Image Omitted)

         Id. at Figs. 1-7 (docket no. 29-2 at 4).

         Another embodiment of the invention is illustrated as follows:

         (Image Omitted)

         Id. at Figs. 8-9 (docket no. 29-2 at 5).

         Each independent claim requires that the elongated body 12 & 102 be made from "a first material," while a "head" 104 be composed of "a second material." Id. at Col. 7, Line 65 - Col. 8, Line 1; Col. 8, Lines 50-53; and Col. 10, Lines 2-4. Claims 1 and 11 describe the head as having "a plurality of bristles" extending therefrom to form "a bristle brush" 15 & 106. Id. at Col. 8, Lines 4-5 & 56-57. Claim 18 makes no reference to "bristles" or a "bristle brush." See id at Col. 10, Lines 1-21. Claims 1 and 18 indicate that the first material (used in the elongated body) must be less rigid than the second material (used in the head). See id at Col. 8, Lines 6-7; Col. 10, Lines 9-11. Claim 11 makes no comparison between the first material and the second material with respect to rigidity or flexibility. See id at Col. 8, Lines 49-60. Claims 1 and 11 state that the elongated body is "flexible throughout," but Claim 18 does not include such language. See id. at Col. 7, Line 65; Col. 8, Line 50; Col. 10, Lines 1-21. Claim 11 envisions that the first material (of the elongated body) "substantially encases the second material at the head portion.” Col. 8, Lines 59-60. Neither Claim 1 nor Claim 18 contains a similar limitation. See Col. 7, Line 64 - Col. 8, Line 7; Col. 10, Lines 1-21.

         Claims 4 and 5, which depend from Claim 1, and Claims 13 and 14, which depend from Claim 11, set forth specific parameters for the second material (used in the head). Claims 4 and 13 require that the second material have “a durometer hardness of between about 75 and about 95 on the Shore A scale.” Id. at Col. 8, Lines 15-16 & 66-67. An alternative requirement for the invention, as expressed in Claims 5 and 14, is that the second material be selected from the enumerated substances.[2] Id. at Col. 8, Lines 17-29; Col. 9, Lines 1-13. None of the dependent claims set forth a requisite durometer hardness for the first material. The specification, however, states that a durometer hardness of ~75 to ~95 on the Shore A scale is “preferred” for the elongated body 12 & 102, but that the hardness “may vary, depending on the degree of safety desired and the selection of the [first] material.” Id. at Col. 4, Lines 26-31. The specification explains that “[a] harder material may affect the need for more pressure exertion by the digit of the user.” Id. at Col. 4, Lines 28-29. The specification also lists a variety of extrudable elastomers from which the elongated body (of the first material) might be formed; with one exception (the omission of polyurethane), the compounds are the same as those enumerated in Claims 5 and 14 with respect to the second material. See id. at Col. 2, Lines 38-50; see also supra note 2.

         The parties disagree about the following claim terms, two of which appear in all three independent claims, one of which is included in only two of the independent claims, and one of which relates solely to Claim 11.

Claim Term

Claim 1

Claim 11

Claim 18

“first material”

X

X

X

“second material”

X

X

X

flexible “throughout”

X

X

“substantially encases”

X

         The alleged infringers, Maxill Inc., an Ohio corporation, and Maxill Inc., a Canadian corporation (collectively, "Maxill"), contend that three of these terms, namely "first material," "second material," and "substantially encases," are indefinite, and that the other term, namely "throughout," should be construed to mean "in every part of." The patent owner, Loops, L.L.C., and its affiliate, Loops Flexbrush, L.L.C. (collectively, "Loops"), counter that the terms "first material," "second material," and "substantially encases" are not indefinite and that the Court need not interpret the term "throughout," ...


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